HomeMy WebLinkAboutCartier 08-10-27
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IN THE MATTER OF AN ARBITRATION brought pursuant to the Ontario Labour Relations
Act, 1995
(Grievance ofL. Cartier)
BETWEEN:
NORTHEAST :MENTAL HEALTH CENTRE
(the "employer")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the "union")
FINAL AWARD
Sole Arbitrator:
Marilyn A. Nairn
Hearings held:
JlUle 9, July 24, July 25,
September 10, 2008
APPEARANCES
For the union:
Marion Melville
For the employer:
Geoff Jeffery
AWARD
This grievance challenges the decision of the Northeast Mental Health Centre ("NEMHC", the
"hospital", or the "employer") to terminate the employment of Louise Cartier (the "grievor") as a
Registered Practical Nurse, The hospital's reasons for terminating the grievor's employment are
summarized in its letter oftennination dated January 24,2008:
... upon attending your scheduled shift on Saturday, January 19,2008 you refused to accept the assignment
(Seniors Mental Health) required of you on that day. As a Float Nurse, you are required to perform nursing
services in any area in which you may be required on a given day. Accordingly, you failed to perform your
duties as directed and required and you left the workplace without authorization. You stated that because of
the assignment to Seniors, you were leaving work. The organization has confirmed that you indeed left your
scheduled shift after refusing the direction to work the Seniors assignment. Despite having been given the
opportunity, you have provided no reasonable explanation for this conduct....
In addition, the org<Wization has been advised that upon attending your next scheduled shift on Sunday,
January 20, 2008, you displayed a lack of respect to the nurse in charge on the Seniors unit, and again acted
unprofessionally by initially refusing to provide care for a specific patient and threatening to go home sick
because of the patient assignment and then challenging the nurse in charge and attempting to negotiate the
terms of your assignment.... Again, you failed to provide an explanation for your conduct, when given an
opportunity to do so.
The organization has attempted, through progressive discipline, to impress upon you the need to attend to
your duties as directed in a diligent and professional fashion.... your conduct remains extremely unacceptable
and you continue to display insubordinate behavior toward persons in authority, lacking insight into the
implications of disregarding orders and into the choices you make related to the assignment of duties. ...
We have considered your past service to the Hospital. However, the accumulation of incidents related to
your unprofessional and insubordinate conduct, have left liS no choice but to conclude that no penalty short of
discharge will be sufficient. We have determined that your continued employment presents an unacceptable
risk to patient safety and care.....
The grievor was hired by the then North Bay Psychiatric Hospital in November 1999. In 2005
NEMHC assumed responsibility for the hospital. NEMHC is a regional psychiatric facility serving
patients suffering from both acute and chronic mental illness. The grievor worked at the North Bay site.
At the outset of the hearing the union sought to lead evidence relating to a history of grievances
brought by the grievor against the North Bay Psychiatric Hospital and NEMHC for the pmpose of
asserting that NEMHC had harassed the grievor and overreached its authority in requiring the grievor to
take a medication administration course while grievances against the Crown in Right of Ontario (in its
operation of the North Bay Psychiatric Hospital) were pending. Those grievances against the Crown were
resolved in June 2006. There is no evidence suggesting that the grievor was dissatisfied with that
settlement Fifteen grievances against NEMlIC were resolved in March 2007. The grievor refused to sign
the March 2007 settlement and complained to the Ontario Labour Relations Board (the "OLRB") about
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OPSEU's handling of those matters. That application was dismissed in May 2008. In tlus proceeding, the
union sought to tender evidence relating to allegations made in those gdevances. Having heard the
representations of the parties on the appropriate scope of evidence, I issued an oral ruling which, at the
request of union counsel, was provided in writing in an interim award dated July 22, 2008. It concludes
that evidence relating to any alleged pattern of harassment and/or discrimination of the grievor by the
employer, or the authority ofNEMHC to require the gdevor to take a medication administration course is
not relevant to and therefore not admissible in this proceeding. Those issues were resolved by the March
2007 settlement. That interim ruling provides, in part:
Those Minutes of Settlement resolved all of the grievances alleging harassment, discrimination,
unjust discipline, and the issue ofNEMHC's authority to require the grievor to take the medication
administration course; all arising out of the allegations that the employer ought not to have required
the grievor to take the medication administration course, and that the grievor was justified in
refusing to take the course. Those Minutes of Settlement cannot now be ignored in order for the
union to raise and litigate the very same issues in the context of this hearing. Those issues were
resolved in March 2007. To allow the union to now rely on those same allegations and now attempt
to litigate those same issues, would be anathema to the binding nature of settlements and to the
conduct of labour relations between the parties, particularly in circumstances where a challenge to
those Minutes of Settlement has been dismissed.
I note, parenthetically, that the Ontario Labour Relations Board's decision makes mention of
aPSED's concern that the grievor's refusal to take the medication administration course would not
likely be found to have been justified on the basis of the 'obey now, [grieve] later' rule. Even
assuming that any original report to the Crown had been fabricated by co~workers, it is not at all
obvious that that fact would entitle the grievor to refuse to take the medication administration
course as requested by a new employer in circumstances where the grievor had not been
administering medications for a period of time.
The Minutes of Settlement were entered into in good faith as a means of moving forward from
those grievances and the allegations contained therein. Those same allegations cannot now be
resurrected in the context of this proceeding. Nor is there any subsequent allegation of harassing or
discriminatory conduct by the employer, save and except arguably, its decision to terminate the
grievor's employment.
The grievor was employed in the classification of Psychiatric Nursing Assistant 2 ("PNA") in the
float pool (a "float nurse"). On any given shift, a float nurse may be assigned to any of nine wards or units
in the hospital that require nursing staff and, while preferences may be acconunodated where possible,
float nurses are expected to work in all areas of the hospital as assigned. The grievor's prefel1ed work
assignment was Unit 2B, a rehab unit.
The staffing clerk begins her day at 5:30am in order to make any staffmg adjustments arising out
of sick calls or other changes to nursing staff prior to the day shift starting at 7:30am. A float nurse
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repOlts to the Nmsing Resource Centre (the "staffUlg office") upon arrival for her shift. She is to check
the assignment sheet which indicates where she has been assigned for that shift and sign in. She then
attends to that area for report, receives her patient assignment, and commences care delivelY.
On Saturday, January 19, 2008 the hospital was short~staffed. Louanne Joubenville, the staffing
clerk, and Mary Marrs, the Clinical Coordinator are responsible for assigning available float staff with the
goal of attempting to give each area its full staffing complement on weekends. Full-time nursing staff
who are assigned to units are not moved to different areas when coverage is required. Rather, float staff
are used to make up staff shortfalls on a unit and are expected to work in whatever unit they are assigned.
Both of these individuals were aware that the grievor preferred to work on Unit 2B.
The grievor had been pre-assigned to Unit 2B for the day shift on January 19, 2008. When the
grievor reported for her scheduled shift that day, she learned that she had been re-assigned to Unit 3D (the
"Seniors ward"). With the exception of the grievor, there was no dispute that the patients on Unit 3D
require a significantly higher degree of care and are more demanding than patients on other units. The
grievor asked Ms. Joubenville why she was being assigned to Seniors. Ms. Joubenville responded that
that was where the grievor was needed as the unit was short~staffed. According to Ms. Joubenville, the
grievor replied that she was not going to go there. Ms. Joubenvil1e replied that the grievor would have to
speak with Ms. Marrs. Ms. Joubenville described the grievor's tone in speaking with her as loud and very
unprofessional. Ms. Joubenville also has experience working as a staffing clerk at North Bay General
Hospital.
Ms. MatTS has an enclosed office approximately twelve feet down the hall from Ms. Joubenville.
The grievor went there and, according to Ms. Marrs, advised Ms. Marrs that she was not going to Seniors
and that she was not to be moved from Unit 2B. Ms. Marrs evidence may be summarized as follows. She
responded that Unit 3D was short-staffed, and that, as a float nurse, the grievor was required to go where
assigned. The grievor responded that she was being discriminated against. The grievor indicated that she
was too upset to work on Seniors and would go home sick. Ms. Marrs notes made later that day indicate
that the grievor was confrontational, stating that she would grieve if the assignment was not changed and
that she would leave if Ms. Marrs would not change the assignment. In an e.mail sent to the grievor's
supervisor, Karen Bennett, on January 23, 2008, Ms. Marrs' indicates that she was unwilling to argue
with the grievor, but that she explained to the grievor that she was not needed anywhere else. Ms.
Joubenville overheard the grievor state that she was going home. She described the grievor's tone as
shouting.
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The grievor left the hospital and did not work her scheduled shift on January 19,2008.
When asked whether she had given the grievor a direct order to report to Unit 3D, Ms. Marrs
testified that the grievor was told that the hospital needed her on Unit 3D. She testified that the grievor
had only then responded that her morale was low and that she felt too sick to work. Ms. Marrs testified
that she then stated, "if you're sick, I can't say you have to stay." According to Ms. Marrs' accounting of
the incident to Ms. Bennett, it was clear to Ms. Marrs that the grievor "knew it was not acceptable to flat
out refuse". The grievor subsequently provided a note from the Coordinator of Health Records at the
West Nipissing General Hospital in Sturgeon Falls which confumed that the grievor had attended its
Emergency Department on January 19, 2008 and was seen by a physician. However, no medical
documentation was ever provided to the employer and none was entered as evidence at the hearing.
The grievor had given no indication to Ms. Joubenville that she was not feeling well. Nor did the
grievor appear to Ms. Joubenville to be at all ill. Ms. JoubenviUe noted "refused assignment" on the
January 19, 2008 staffing schedule. Later, following discussion with Ms. Marrs, the notation "sick" was
also made on the schedule. The grievor's absence on January 19,2008 was not coded by payroll as 'sick'
and no sick benefits were paid to the grievor for that day. No grievance was filed challenging that
treatment.
Ms. Marrs testified that the expectations of float staff are clear; they must work where they are
needed. She acknowledged that the hospital attempts to accommodate preferences but that it is well-
known that the hospital is not always able to do so, Ms, Marrs had no doubt that the grievor understood
the employer's expectation. In her evidence the grievor confumed that she was aware of and understood
the hospital's expectation that float nurses are to work in any area of the hospital to which they are
assigned.
Ms. Marrs explained why the grievor's assignment had been changed. A male nurse on Unit 2B
had called in sick. Both the grievor and another PNA, Therese Brunet, had been assigned to Unit 2B as
floats. Unit 2A had too many nurses and a male nurse was moved to Unit 2B to cover the absence and
keep the required complement of male nlli'ses on the unit. Ms, Marrs was then called by Unit 2B and
advised that they were still short as another male nurse was going out with a patient. A male nurse was
called in to work. As a result, Unit 2B was fully staffed and neither the grievor nor Ms. Brunet were
required there. Unit 3D was short as it had two patients under constant observation (a "constant"), each
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requiring one~on~one nursing care. Ms. MatTS was not able to send Ms. Brunet to Unit 3D as that
assignment was not within with Ms. Brunet's medical restrictions. The grievor was assigned to Unit 3D.
After the grievor left, Ms. Marrs received a call from Unit 4D advising that a nurse, Tim
Patterson, was there. Ms. Marrs had understood that he was off on a stat day. As a result, Unit 4D was
overstaffed and Ms. Marrs needed to move someone from that unit. In the result, Ms. Brunet went home.
As it turned out, Unit 2B had more male nurses than required. However, Ms. Marrs was not able to move
those staff to Unit 3D as those individuals were not assigned to that area. It is the float nurses who move
among the units. No float worked in Unit 2B on January 19,2008. According to an e-mail received by
Ms. Bennett after the fact from Ms. Orton, a senior staffmg clerk, one of the floats assigned to the
forensics area could have been re-assigned to Unit 3D, allowing Ms. Brunet to stay on Unit 4D. That
would have allowed Unit 3D to work fully staffed following the grievor's departure.
The union did not argue that a float nurse from forensics could have been re-assigned to Unit 3D
and that the grievor could then have been moved to the forensics unit, although that was arguably an
option. At the time of the grievor's exchange with Ms. Marrs, it was believed that the forensic units were
staffed appropriately in accordance with assignments already made. The movement came about as a result
of changes on the unit where the grievor had been pre-assigned. It was logical therefore to move the floats
from that area rather than creating more upheaval by re-assigning additional staff from other areas in
order to accommodate the grievor. I am satisfied that there was nothing untoward in the hospital's
decision to assign the grievor to Unit 3D in these circumstances. Nor was there any evidence suggesting
that the grievor had been assigned to Unit 3D disproportionately to other float nurses.
Ms. 10ubenville agreed with the union that complaints are often made about assignments and that
Ms. Brunet also complained of her assignment that day, stating that "if you're going to send me [to Unit
3D], I'm going home too". As a consequence of the grievor's departure, Ms. Bmnet was asked if she
would work Unit 3D. Her comment was in direct response to the grievor's behaviour. And, although Ms.
Brunet 'refused' the assignment to Unit 3D, that response was in accordance with her medical
restrictions, a fact Ms. Marrs acknowledged. As a result, there was no work for Ms. Brunet and she
accepted being sent home early that day.
Unit 3D was left short~staffed as a result of the grievor's departure. The grievor's husband, also
an employee at the hospital, offered to relieve and appears to have worked on Unit 3D for the morning in
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order to help with morning care. No replacement was found for the remainder of the shift and the unit ran
short-staffed.
At the time of these events, Mrny Anne Lamothe was the Nurse Manager on Units 3B and 3D and
was responsible for the care provided, including ensuring that the units were appropriately staffed
according to patient acuity. She described the patients on Unit 3D as suffering from severe and persistent
mental illness, including age. related issues. The unit is both an assessment and treatment unit. She
indicated that patients require active behavioral management by staff and that behavioral disturbances are
very common,
Darlene Dubonnet-Beachy was working as the Charge Nurse on Unit 3D on the weekend in issue.
Ms. Dubonnet-Beachy is employed as a Registered Nurse on a casual basis at the hospital. She is also
Assistant Director of Nursing at a nursing home near North Bay. She had worked at the hospital for just
over three months at the time of these events. The unit had two constants, each requiring one-on-one
continuous nursing care. One patient was new to the unit and her behaviours and issues were not well
known even to the regular staff. She reacted to stimuli by screaming continuously, causing disruptions,
and agitating other patients as well. The other constant also screamed often and had an infected foot that
required elevation. Both were agitated. Staff assigned to work the constants cannot assist with other work
on the unit. At one point in the shift one of these patients required three to four people to segregate her
from the rest of the patients due to her behaviours. A staff member was pushed by a patient. Trying to
deal ,vith a patient's blood pressure issue, the physician had difficulty giving instructions over the phone
due to patient noise levels. As Ms. Dubonnet-Beachy described it, "the whole ward was high". The
hospital uses a scale of 0.6 to describe the level of patient acuity on a unit. In her notes made the
following week, Ms. Dubonnet-Beachy described Unit 3D as 5+ on Janu3.1Y 19, 2008, compared to an
average day graded at 3. She testified that being short one person made the day that much more difficult.
On Sunday, Janurny 20, 2008 the grievor was again assigned to Unit 3D. The grievor arrived at
the staffing office, received her assignment, and went to the unit.
According to Ms. Dubonnet-Beachy's understanding, the constants were usually assigned to float
staff That appears to have been her experience when working as a float. She understood that on Unit 3D
a staff rotation was allowed for particularly difficult patients. In her experience, she had been assigned to
at least the first four hours of a constant in order that morning care could be completed before any rotation
started. Ms. L3.1uothe testified that the primary nurse assigned to the patient would normally take the
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primary role in a constant with relief then provided. Any difference in the particular approach to
assignments to constants is ultimately of no consequence as both supervisors agreed that the assignment is
often rotated over a shift and, at the same time, staff are aware that their work assignment may include a
constant.
The grievor had been assigned to one of the constants. Ms. Dubonnet~Beachy was the only
registered nurse on shift and would be required for other duties over the course of the shift. According to
Ms. Dubonnet-Beachy, when advised of her patient assignment on the unit, the grievor refused the
assignment, indicating that she would go home sick, and that she was not sitting with the patient all day.
There was no evidence to suggest that the grievor was assigned the constant for any improper motive.
Prior to January 20, 2008, Ms. Dubonnet-Beachy had not met the grievor.
Ms, Dubonnet-Beachy described that the grievor crossed her arms, sat back in the chair, and acted
in a defiant manner. One of the grievor's co-workers, Bev Johnson, had been assigned to a constant for
the entire shift the day before and responded that the grievor knew she couldn't take that constant again
that day. Ms. Dubonnet-Beachy indicated that they would be rotating the constant over the shift as they
lmew the patient was difficult. According to Ms, Dubonnet-Beachy, the grievor responded that she did not
care; that she was not going to do the assignment, asking Ms. Dubonnet-Beachy what she was going to do
about it, and indicating that she was going to go home.
According to Ms. Dubonnet-Beachy, she advised the grievor that if she chose to refuse the
assignment she would have to take that up with Ms. Marrs on the way out. The grievor left the floor. Ms.
Marrs had a brief conversation with the grievor, wherein the grievor indicated that she would accept the
assignment to Seniors but that she did not want to work there, Shortly after, Ms. Dubonnet~Beachy found
the grievor 'negotiating' with her co-workers the amolUlt of time she was to spend with the constant. Ms.
Dubonnet-Beachy told the grievor that she was required to stay with the constant until 1l:00a.m. The
grievor agreed to do the first four hours and the reminder of the shift was covered by two-hour rotations
of her co-workers. Although other issues were raised by her co-workers concerning the grievor's work
performance that day, the hospital did not rely on them in reaching its decision to terminate her
employment.
Ms Lamothe became aware that there was a problem with float staff for the weekend in question
from Shirley Eades, a Facilitation Nurse on Unit 3D. That individual is involved with a number of
administrative issues, including staffing for the unit. Ms. Eades advised Ms. Lamothe to contact the
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staffmg clerk. As Nurse Manager of the unit, Ms. Lamothe made inquiries as to the events of the
weekend. As it happened, the hospital conducted a separate investigation and made its decision to
terminate the grievor's employment prior to receiving a full report from Ms. Lamothe. Of note is the fact
that the hospital's conclusions as to the events are consistent with Ms. Lamothe's 'fact-finding'.
Ms. Karen Bennett, Vice-President of Clinical Programs, has been employed with the hospital in
a management capacity since 1994. Ms. Marrs reports directly to Ms. Bennett. At the time of these events,
members of the nursing float pool, including the grievor, also reported directly to Ms. Bennett. Ms.
Bennett became aware of the Janumy 19, 2008 issue through an e-mail forwarded by Ms. Marrs later that
day. She also received a 'heads-up' e-mail that weekend from Kelly Lowther who is responsible for Unit
3D. Ms. Bennett received a further e-mail from Ms. Marrs on January 23, 2008 in response to questions
raised by her. At approximately 1 :OOpm on Wednesday, Januaty 23, 2008 Ms. Bemlett received a copy of
notes made by Ms. Lamothe. Finally, she received a statement from Ms. Dubonnet-Beachy the following
morning, She had discussions with Alison Robinson, Manager of Human Resources, on the Monday and
again on the Wednesday.
Coincidentally, Ms. Bennett had a meeting scheduled with the grievor and her union
representative for the afternoon of Thursday, January 24, 2008. This meeting had come about as a result
of the grievor raising a similar concern about an assignment to Unit 3D in late November 2007. Although
Ms. Bennett had offered to meet in December 2007, the meeting had been scheduled in accordance with
everyone's availability. On Thursday morning, January 24, 2008, Ms. Robinson advised the union
representative that the agenda for the meeting would be changing in order to obtain the grievor's response
to serious concerns raised about her conduct over the weekend.
At that meeting, in response to the allegation that Ms. Marrs had reported that the grievor had
refused the assignment to Unit 3D on January 19, 2008, the grievor responded that she had asked Ms.
Marrs why her assignment had been changed but that she did not refuse the assignment. The grievor
indicated that she had gone home sick. The grievor denied speaking with Ms. Dubonnet-Beachy at all on
the Sunday moming and indicated that there were no problems on the Sunday shift at all.
Ms. Robinson and Ms. Bennett adjolUlled the meeting to confer. They discussed the credibility of
the varying accounts they had received. They discussed the likelihood of Ms. Mans and Ms. Dubonnet-
Beachy making false allegations. Ms. Bennett thought it vety unlikely that a float nurse would have no
communication with the charge nurse at the beginning of a shift. They concluded that the various
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statements were largely consistent and in direct contradiction to the grievor's account. Ms. Bennett
described that at that point she felt that without a credible response from the grievor she was not in a
position to believe her. The meeting reconvened in order to review the matters again and seek clearer
responses. Ms. Bennett acknowledged that she and Ms. Robinson had agreed that if the grievor's
responses did not provide a credible explanation, tennination of the grievor's employment was their
considered response. In preparation for the meeting the employer's representatives had reviewed the
grievor's fIle, noting that discipline had earlier been imposed for similar misconduct. They had also
prepared a draft letter incorporating excerpts from and references to earlier communications to the grievor
regarding the employer's expectations around the issue of taking direction.
Upon reconvening the meeting, the grievor again denied that she had refused to work on Unit 3D
on January 19,2008. According to Ms. Robinson and Ms. Bennett, the grievor denied having stated to
Ms. Marrs that she felt that she was being picked on or that she would be filing a grievance for
discrimination; she denied having any conversation with Ms. Dubonnet-Beachy on January 20, 2008; she
acknowledged that she had asked Ms. Marrs why her assignment had been changed; she denied refusing
the patient assignment; and she stated that Ms. Marrs had no credibility.
At the conclusion of those questions, Ms. Bennett advised the grievor that, in light of the accounts
from others; she did not believe the grievor's accounting of the events and that the hospital was
terminating her employment. Ms. Bennett testified that they did not believe that the grievor had gone
home sick on January 19, 2008. Rather, they concluded that the grievor had been angry and upset over her
assignment. Reference was made at the meeting to the grievor's employment history and the hospital's
view that it had made its expectations regarding taking direction clear to the grievor,
The meeting again adjourned and Ms. Bennett and Ms. Robinson finalized the letter to one of
termination, which was then delivered to the grievor by Ms. Robinson. Ms. Robinson arranged to have
the grievor's husband contacted in order that he could provide support in retrieving the grievor's personal
belongings from her locker and seeing her home.
Subsequent to the meeting with the grievor on January 24,2008, Ms. Bennett received an e~mail
report from Ms. Lamothe. That report is a summary of interviews Ms. Lamothe conducted with various
staff concerning the Sunday shift on Unit 3D. Although hearsay, that accounting is consistent with the
information received by and acted upon by Ms. Bennett regarding the grievor's alleged initial refusal to
accept the assignment to the constant.
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At the hearing, the grievor testified that upon arriving for work on January 19, 2008, she was not
feeling well, She stated that upon arriving, she asked Ms, Joubenville if Ms. Marrs was present and was
told that she was in her office, The grievor says she then asked Ms. Marrs for pennission to retmn home,
According to the grievor, Ms, Marrs advised the grievor that the hospital was short-staffed and that the
grievor didn't look ill. The grievor apologized for the short notice but indicated that she was not well. In
the grievor's account, Ms. Marrs then gave her pennission to go home. On her way, the grievor stopped at
the Emergency Department of the West Nipissing Hospital, saw the duty physician. was released and
went home.
At the hearing, the grievor denied having any conversation with Ms. Joubenville other than
asking whether Ms. Marrs was present In cross-examination the grievor denied learning that her
assignment had been changed when she reported for work on January 19,2008, She testified that she did
not recall looking at the assignment sheet. She did not agree that Unit 3D was one of the tougher
assignments at the hospital. The grievor denied Ms. Marrs' account of their conversation and refeu'ed to
Ms. Marrs' open aclmowledgement that she had a poor memory (made when referring to her
contemporaneous notes). The grievor testified that Ms. Joubenville and Ms. Marrs conspired to concoct
their evidence and referred to the evidence documenting her absence as both 'sick' and 'refused
assignment' .
The grievor testified that on January 20, 2008 she attended at the staffing office, signed in and
went to her assigned lUllt, Unit 3D, She testified that, upon her arrival on Unit 3D, she did not speak to
Ms. Dub onnet-B eachy. She testified that her assignment to the constant was communicated to her by a
co~worker, Sylvie Renaud. The grievor stated that until advised othenvise on Janumy 24, 2008, as far as
she was aware there were no concerns arising on the weekend. She replied affinnatively when asked
whether her different accowlt of events meant that Ms. Dllbollnet-Beachy had fabricated her evidence.
Sylvie Renaud reported to Ms. Lamothe that she was present when the grievor told Ms.
Dubonnet-Beachy on January 20, 2008, that she would only do the constant for an hour, and if longer
than that, she would leave and call in sick and that the Charge Nurse told the grievor to take it up with the
Clinical Coordinator. The grievor could not explain why Ms. Renaud would have given a different
account of the events of January 20,2008 to Ms, Lamothe. Ms. Renaud did not testify.
The grievor testified that Ms. Robinson's notes made at the meeting did not accurately record the
discussion at the January 24, 2008 meeting. She also disputed Ms. Robinson's and Ms, Bennett's
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evidence of what was discussed at the meeting. The grievor testified that she only recalled two questions
being asked at the meeting. She testi~ed that, in response, she denied leaving work without authority on
Janumy 19, 2008 and she denied refusing her assignment on January 20, 2008. She denied saying at the
meeting that she had asked Ms. Marrs on January 19, 2008 why her assignment had been changed. She
testified that she had spoken to Ms. Marrs only of not feeling well. The union representative present at the
meeting did not testify.
The employer relied on the grievor's disciplinary record in reaching its decision to tenninate the
grievor's employment. During the proceedings, the union sought to argue that there was no discipline on
the grievor's record on the basis that the March 2007 settlement was privileged and was entered into on a
without prejudice basis. That issue was dealt with by way of an interim ruling dated May 3, 2008 which
concluded:
In this case, the Minutes of Settlement provide (in paragraph 6) that the employer "will remove any
disciplinary letter relating to the direction to take the medication administration course from the Grievor's
personnel file on 18 August 2008, provided that the grievor does not engage in any similar misconduct for
which discipline is imposed within that period". There is no ambiguity. The parties have agreed that any
disciplinary letter relating to the direction to take the medication administration course will remain on the
grievor's personnel file until at least August 18, 2008. As that date has not yet passed, such documentary
material remains on the grievor's personnel .file. There is no limitation in the Minutes of Settlement as to the
use of that material within the stated time frame.
The grievor's disciplinary record includes two suspensions. A fivewday suspension was imposed
on Jlll1e 15,2006 in response to the grievor's repeated refusal to take a medication administration course
as required by the employer. The course was to be completed on work time and at the hospital's expense.
That letter of suspension advised:
. . . Should you engage in any further misconduct upon your return to work, further appropriate discipline will
be implemented up to, and including, termination from employment for just cause. In particular, should you
continue to refuse to follow directions, including the directions you will receive upon your return to work
following your suspension to take a medication administration course, you will be dismissed for just cause.
Following a meeting with the employer and her union representative in August 2006 when the
grievor continued to refuse to take the comse, the grievor's employment was terminated. The grievor then
agreed to take the course and the tennination was reduced to a five-day suspension. That letter of
suspension dated August 21,2006 states:
Both during and after completion of the course, you will be expected to comply with any other
directions given you with respect to the course, your training and otherwise during the course of your
employment. Any further failure on your behal[to follow management direction will result in the immediate
termination of your employment for cause.
(emphasis added)
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The grievor testified that the admonition italicized above referred only to the taking of the
medication administration course. No other evidence supported this limited an interpretation of the
hospital's stated expectation.
The grievor and her union representative subsequently met with the employer's HR Consultant at
which time he reinforced the hospital's expectations of her as a float nurse. His e-mail dated November 8,
2006 states, in part:
l). It is expected that you will report to the work area to which you are scheduled. If a reassignment to
another work area is necessary, it is expected that you will comply.
2). When a charge nurse requests that you perform a duty, you are expected to perform that duly,
provided that it is not illegal or that no valid health and safety coucerns exist.
The e-mail also states tbat the grievor indicated that she understood these expectations. All of
these actions by the hospital were grieved and ultimately resolved by the Minutes of Settlement dated
March 21, 2007, wherein the hospital acknowledged that the grievor had successfully completed the
medication administration course. Paragraph 2 of those Minutes state:
2. The Grievor acknowledges that she must follow directions given to her by a person in authority on behalf
of the Employer in the course of her duties provided that such directions do not threaten her health and safety
and are not illegal.
Although the grievor did not sign the Minutes of Settlement she agreed that she had read them.
She reviewed them carefully enough to instruct counsel to challenge them before the OLRB. The grievor
was asked if she had read and understood this excerpt. She answered, "What kind of direction, that's the
thing." She testified that in context the sentence was ambiguous. She suggested it related solely to the
taking of the medication administration course; notwithstanding that she had successfully completed the
course at that point.
*
*
*
It was the position of the employer that an assessment of credibility was necessmy in the
circumstances to determine whether the conduct alleged has been substantiated by the evidence. The
employer argued that there was no explanation for why a significant number of witnesses would fabricate
a story both to the employer and in evidence. The grievor's evidence was not consistent with her account
of the events to the hospital's representatives at the meeting on January 24, 2008 and there was no
13
explanation as to why Ms. Robinson and Ms. Bennett would fabdcate their account of that meeting. The
employer noted that much of the grievor's account contradicting the employer's witnesses had not been
put to those witnesses when they testified. Other witnesses allegedly able to corroborate the grievor's
account had not been called to testifY, leading to an inference that their evidence would not corroborate
that account.
The employer argued that the union could not rely on Ms. Marrs' comments to the grievor on
January 19, 2008 as relieving the grievor of responsibility for refusing her assignment; providing
pennission to go home, and acceptance of the grievor's explanation that she was sick. Looking at the
evidence at a whole, argued that employer, it is clear that the grievor left her scheduled shift without the
proper authority and that she knew that her actions in refusing the assignment were contrary to the
employer's expectations. The employer noted that the grievor only claimed to be sick after refusing her
assignment. No medical evidence had been offered to substantiate any illness. The employer argued that
its allegations of insubordination and unprofessional conduct had been made out. The question was
whether discharge was the appropriate penalty.
On that issue, the employer, while acknowledging that the grievor had been employed at the
hospital since 1999, relied on the fact that the grievor had been disciplined in the past for the same kind of
misconduct and had been made aware on more than one occasion of the employer's expectations and the
seriousness with w1tich the employer regarded her misconduct. The employer argued that progressive
discipline had not worked and that there was no basis from which to conclude that the grievor's behaviour
would improve. In that regard, the employer argued that its concern was compounded by the fact that the
grievor continued to deny all of the allegations and, in the course of maintaining that denial, had openly
implicated a number of members of management and co-workers in a conspiracy of lies. No basis for
such conduct was offered, argued the employer, noting that Ms. Dubonnet-Beachy had not even met the
grievor until the day in question. Thus, the employer argued, the bust that it must necessarily place in the
grievor had been irretrievably lost. The employer noted that the effect of the grievor's conduct on Janumy
19, 2008 was that the patients on Unit 3D were subjected to heightened stress and agitation and that the
work was made more difficult for staff. The grievor also openly challenged the authority of the Charge
Nurse in the presence of other staff
The union agreed that this case depended on the facts. It argued that to the extent that the hospital
sought to rely on prior discipline, the employer was responsible for not responding sooner to the concern
raised by the grievor in November 2007 and had failed to comply with its own policies about addressing
14
employee concerns in a timely fasmon. The union challenged the investigation as inadequate as the
grievor only became aware of allegations on Janumy 24, 2008. The employer did not speak to all of the
witnesses prior to making its decision and only received Ms. Lamothe's account after the decision to
terminate the grievor's employment had been communicated to the grievor.
The union described Ms. Dubonnet-Beachy's evidence as evasive and warranting little or no
weight. It was her word against the grievor's, argued the union. The union suggested that Ms. Brunet had
been treated differently. While it acknowledged that Ms. Brunet was being medically accommodated, it
noted that the hospital allowed her to go home without penalty, even though she had been advised that she
would not be required to do any lifting in contravention of her restrictions.
The muon argued that there was no insubordination as the grievor was sick and had permission to
go home on January 19, 2008. If the employer intended to rely on any purported refusal by the grievor,
the union argued, it required the employer to tell the grievor that if she went home she would be subject to
dismissal. There was no direct order given to tlle grievor, argued the union. As it was, argued the union,
the grievor left work with pennission. No medical note was forthcoming, argued the union, as none was
requested. Ms. Bennett simply advised the grievor that she did not believe that she was sick. That
conclusion was drawn without full regard to the facts, argued the union. Referring to the staffing
schedule, the union argued that even the employer's records demonstrated that the employer treated the
grievor as having been sick. The union alleged that the employer had engaged in a kind of 'group think'
in dealing with the grievor.
The union argued that the grievance ought to be allowed and the grievor reinstated without loss of
seniority and with :full compensation. It also sought an order removing any documentary material from the
grievor's file relating to her employment with the Ministry of Health, In the alternative, the union argued
that should there be a fInding of some cause, telmination from employment was too severe a penalty in
the circumstances. The grievor had just over eight years of seniority, was 53 years of age, and would have
significant diffIculty in obtaining other employment in the community without further training.
In reply, the employer noted that any information coming to light after its decision to terminate
the grievor's employment was consistent with the information it acted upon. The grievor was given full
opportunity to respond to the allegations and denied them. The employer noted that it was incumbent on
the grievor to establish that she was ill. The better conclusion to be drawn from the evidence, the
employer argued, was that the grievor was not sick on January 19, 2008 but was angry and upset about
15
her assignment and that she then attempted to 'cover her tracks' by attending at the Emergency
Department of another hospital, The employer argued that the grievor left Ms. Marrs in an impossible
situation. Ms. Marrs had no authority to deal with a perceived misrepresentation regarding the grievor's
health or to impose discipline. The grievor, argued the employer, actively manipulated the situation to her
advantage and challenged Ms. Marrs' legitimate direction in so doing. That deceit, argued the employer,
spoke to the grievor's abuse of trust.
*
*
*
The employer referred me to and I have reviewed the following cases: Chatham-Kent
{Municipality} v. CAW Canada (Clarke), (2007) 159 L.AC. (4th) 321 (Williamson); Southlake Regional
Health Centre v. Ontario Nurses' Association (Robinson), [2008] a.L.AA. No. 158 (Gray); Re Foothills
Provincial General Hospital and Alberta Union of Public Employees, Local 055, (1993) 32 L.A.C. (4th)
95 (Randall); and Rescare Premier v. Industrial, Wood andAllied Workers of Canada, Local 700 (Gatto),
[2003] a.L.A.A. No, 695 (Abramsky). The union referred me to and I have reviewed: Squamish
Terminals Ltd and 1.L. W. U. Local 514 (Puchmayr), (1997) 72 L.AC. (4th) 5 (McPhillips).
This matter was heard over four days. The union took issue with the hospital's account of the
events, relying on the grievor's evidence, In reaching my fmdings of fact, I have had to consider the
credibility of the witnesses. In almost all respects. the grievor denied the accounting of the events
provided by the witnesses called by the hospital, Some of those witnesses had made contemporaneous
notes. The hospital's witnesses gave a consistent accounting of the events in the absence of hearing each
other's testimony. TIle grievor's evidence was that her co-workers and supervisors had lied to the
employer and at the hearing. No reasons were offered as to why a number of individuals would concoct
evidence and testify under oath in order to subvert the grievor's interests. There was no evidence that the
work assignments made were in any way inappropriate. Witnesses who might have corroborated the
grievor's version of events were not called to testify and it must be inferred that such evidence would not
have supported the grievor's account. If there was doubt as to the credibility of evidence relating to the
events, the fact that the grievor also testified that Ms. Robinson and Ms. Bennett lied about what was said
at the meeting on January 24, 2008 substantially resolves any doubt. Ms. Robinson was called as a
witness by the union and confirmed that she had made her notes during the course of the meeting, while
Ms, Bennett had conducted the meeting. The evidence of the employer's representatives was entirely
consistent with those notes and the union representative present at the meeting did not testify.
16
Having regard to the evidence as a whole, to the demeanour of the witnesses, and to what is most
reasonable and probable in the circumstances, I find that I am unable to place any weight on the grievor's
testimony. Therefore, in making findings of fact, I have discounted the grievor's evidence where it
conflicts with the evidence of other witnesses.
Insubordination may take forms other than the refusal of a direct order. Insubordination may
include conduct that is threatening, insolent, or contemptuous of management, where such behaviour
indicates resistance to or defiance of the employer's authority. (See Chatham-Kent {Municipality}, supra.)
In Squamish Terminals Ltd, supra, the grievance was dismissed and the discipline upheld. The arbitrator
observed at page 12;
.. ..insubordination in the workplace can involve behaviour other than simply a refusal to follow a direct
order. Insolent, disrespectful, insulting or defiant words may, in a particular context, constitute a type of
insubordination and be an employment offence.
The arbitrator relied on the decision in British Columbia Railway quoted at page 13 of his award:
hi many ways the conduct of the grievor was qualitatively more serious than an employee refusing to obey a
direct order. The conduct of the grievor went directly to the credibility of supervision itself and indicated an
attitude on the part of the grievor that he could behave as he pleased..... The presence of such an attitude
expressed by so forceful a personality constituted a fundamental challenge to the discipline of the work place
and the right of management to supervise that activity.
I accept the evidence of Ms. Joubenville and Ms. Marrs. I find that the grievor inappropriately
and without proper excuse refused the assignment to Unit 3D on Janmuy 19,2008. Rather than accept the
assignment as she was required to do as a float nurse, the grievor was insubordinate in refusing the
assignment and acted unprofessionally in the manner of her response to the employer's legitimate
direction regarding the assignment. She also sought to avoid responsibility for her work assignment and
for her refusal on the basis that she was sick. There is no evidence to support that claim of illness and I
reject the grievor's assertion that the mere fact that one is seen by a physician in all Emergency
Deparlment is evidence of illness. The consequences of the grievor's refusal were felt by her co-workers
and the patients on Unit 3D.
I have carefully considered whether or not the fact that Ms. Marrs did not say something more
direct to the grievor vitiates the grievor's refusal. That is, was the grievor led to reasonably believe that
she had permission to refuse her assignment? I am not so persuaded. Both Ms. Joubenville and Ms. Marrs
made clear to the grievor the nature of her assignment; that Unit 3D was where she was needed. Ms.
Marrs also advised her that the hospital did not need her to work elsewhere. Initially, the grievor told Ms.
17
Marrs that she was not to be moved fi'om Unit 2B; something the grievor knew to be untrue. The grievor
was aware that if a reassignment to another work area was necess81Y, the hospital expected that she would
comply. The grievor then tlueatened various actions if Ms. Marrs did not change the assigmnent. Only
when those challenges to Ms. Marrs' direction failed to accomplish the desired result did the grievor
claim that she was ill; seeking a way to create a legitimate excuse for her conduct. In these circumstances,
one must conclude that the grievor was aware that her actions were contrary to the employer's legitimate
expectations, as she actively sought to create an excuse for her refusal.
I also fUld that the grievor was insubordinate in initially refused her patient assignment on Unit
3D on January 20, 2008 and that she acted in an unprofessional manner in her exchange with the Charge
Nurse and by tlueatening to use sick time as a means of avoiding a work assignment. The fact that the
grievor met with Ms. Mans following her attendance on the unit corroborates the Charge Nurse's
evidence. TIle only reason for meeting with Ms. Marrs at that time would be in response to the Charge
Nurse's direction that the grievor would have to speak to Ms. Marrs regarding her refusal before leaving.
It appears that the grievor reconsidered her position by the time she spoke with Ms. Marrs and returned to
the unit. The employer conceded that the assertion of 'negotiations' was not being seriously pressed as the
staff generally do work out the rotation for a constant beyond the initial assignment.
Attempts by the union in cross-examination of Ms. Bennett to suggest that the outcome of the
Januroy 24, 2008 meeting was pre-detennined and that the hospital's investigation of the events was
somehow lacking reflected an attempt to divert attention from the matter of the grievor's conduct. The
hospital gave the grievor an appropriate opportunity to respond to the allegations raised against her. She
denied them, Notwithstanding that the grievor's complaint against the union to the OLRB had apparently
been served on the employer on January 22,2008, neither Ms. Bennett nor Ms. Robinson was aware of it
at the time they met with her. There was no evidence that the tmion representative present at the meeting
either knew of the complaint or referenced it at the meeting.
Having found that the grievor was insubordinate and engaged in misconduct by refusing her work
assignment on January 19, 2008 and by initially refusing her patient assignment on Januaty 20,2008, and
having found that she a.cted unprofessionally towards her co-workers and supervisors on both days, I
further fmd that the employer has established that it had cause to discipline the grievor. The remaining
issue is whether it is appropriate to exercise the discretion to modify the discharge to a lesser penalty.
18
The fact that Ms. Brunet went home without penalty does not mean that the grievor was treated
differently. Ms. Marrs asked Ms. Brunet if she would work on Unit 3D, knowing that it was outside her
medical restrictions. Notwithstanding some assurance that she would not be required to perform any
lifting, Ms. Brunet declined, as Ms. Marrs acknowledged she was entitled to do in light of her specific
medical restrictions. Those circumstances bear no resemblance to the grievor's refusal to accept her
assignment.
In saying to the grievor, "if you're sick, I can't say you have to stay", did Ms. Marrs cause the
grievor to reasonably believe that the consequences of her actions would be less than discharge? I have
found that the grievor was aware that her actions were contrary to the employer's direction. The grievor
was, or should have been aware of the possible consequences.
The grievor has two prior disciplinary suspensions on her record for refusing to follow legitimate
employer direction. TIle second suspension was a reduction in penalty from a discharge, at which time the
hospital indicated to the grievor in writing that any further misconduct relating to the taking of direction
would result in the grievor's termination from employment. The fact that the grievor denied any
misconduct throughout these proceedings may be taken as indicative of an understanding on her part that
the hospital had already given her that 'last chance' warning. It would also help explain her attempt to
characterize the plain words of the suspension letters as relating only to the matter of taking the
medication administration course. It may be that the grievor felt that acknowledging her misconduct could
only produce one result. While that is perhaps understandable in the context of meeting with the
employer, it does not hold true when giving evidence.
In assessing whether to exercise the discretion to modify the penalty of discharge, arbitrators look
to whether an employee understands the nature of and accepts responsibility for their misconduct,
recognition which provides some basis from which to continue the employment relationship. That
includes an indication that tlle employer might again be able to place its trust in the employee to perform
the required work. In this case, not only has the grievor's evidence been fmmd to lack credibility as to the
events, she has actively challenged the veracity of a number of her co-workers and supervisors. Although
the circumstances giving rise to the discipline were different, a similar concern was taken into account in
Rescare Premier, supra, wherein the arbitrator held:
80. ...More significantly, the grievor showed no remorse for her actions or understanding of the situation.
Her testimony leaves no doubt that sbe felt that management alone was to blame. She felt "lied to" and "set
up"; she had "no trust" in management. She did not appear to even consider the possibility that she might
19
have been at fault or that there bad been a misunderstanding about the location of the meeting. Instead, she
imputed improper motives to management. Throughout her testimony, the grievor demonstrated real
hostility toward management which went beyond being upset at her temlination. Her hostility indicates to
me that restoration of the employment relationship and the mutual trust required to sustain that relationship
is vet)' unlikely. Accordingly, 1 find that this is not an appropriate case to exercise my discretion to substitute
a lesser penalty.
In dismissing the grievance in Squamish Terminals, supra, the arbitrator concluded at page 17:
... The final, and in many ways the most important, oonsideration is [the grievor's] attitude both at the time
of the incident and at the hearing itself. There has never been any open and honest acknowledgment on his
part of the inappropriateness of his behaviour.
In Southlalee Regional Health Centre, supra, the discharge of a nurse was upheld. The arbitrator
commented:
148. Insubordination is very serious misoonduct, misconduct to which one does not normally respond by just
imposing the next step up from the discipline that was last imposed Oll the grievor for whatever
reason... .Even if [the grievor] had been wronged... .her obligation was to 'obey now, grieve later', rather than
engage in self-help... in defiance of her employer's instructions.
149. ...if the grievor had acknowledged, in retrospect, that it was wrong to have [acted] in defiance of
management's instructions....1 might have been inclined to substitute a lengthy suspension and give the
grievor an opportunity to rehabilitate the employment relationship. At it is, there was no such recognition, no
apology, no sign of remorse in this respect. ...
155. ....I see little hope that [the grievor] could be reformed by a lesser penalty or that the degree of trust
required in an employment relationship of this sort could be restored. An arbitrator's giving an employee
another cbance to improve involves requiring that the employer assume the risk that she will not improve. In
the circumstances of this case I am not prepared to impose that risk on the employer. . . .
In Foothills Provincial General Hospital, supra, the discharge of the employment of a respiratory
clerk was upheld. In declining to reduce the penalty and give that grievor a second chance, the arbitration
board concluded, at page 103:
The pwposes of discipline are rehabilitation or oorrection, but unless the grievor indicates a willingness to
appreciate the seriousness of the offence and to change, those pwposes will not be served.
While the grievor had approximately eight years of seniority, her employment with NEMHC
since 2005 has been peppered with issues relating to her difficulty in accepting employer direction. Even
if one were to assume that the grievor continues to harbour a sense of injustice (well-founded or
otherwise) about what she believes were fabricated complaints made against her a munber of years ago, it
is not incumbent on the employer to accept either the grievor's inability or lU1\villingness to move beyond
the settlement of those matters in circumstances where the grievor has continued to act in a manner that
indicates that she does not recognize legitimate employer direction and the fundamental workplace ~'obey
20
now, grieve later" rule. 111at is particularly the case where, as here, the grievor accepts no responsibility
for her conduct. As indicated in the letter of tenninatioll, notwithstanding earlier discipline, the grievor
continued to display insubordinate behaviour, "lacking insight into the implications of disregarding orders
and into the choices [she makes] related to the assignment of duties", There is no basis from which to
conclude that the grievor will change her behaviour if reinstated.
Having regard to all of the above, I find that the employer had cause to ternllllate the grievor's
employment. I further find that this is not an appropriate case to exercise the discretion to modify that
penalty. This grievance is hereby dismissed.
Dated at Toronto, Ontario this 27th day of October, 2008,
~~i::~~